You are here: / Judges
, , , , ,

ALTHOUGH THE PLAINTIFF’S FAILURE TO COMPLY WITH DISCOVERY ORDERS WAS WILLFUL AND CONTUMACIOUS, PRECLUSION OF EXPERT EVIDENCE IN THIS MEDICAL MALPRACTICE CASE WAS TOO SEVERE A SANCTION; PLAINTIFF’S ATTORNEY FINED $5000 (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Clark, determined preclusion of evidence in this medical malpractice case as a sanction for failure to provide discovery was too severe a sanction. The appellate court imposed a monetary sanction on plaintiff’s attorney:

Supreme Court found that plaintiff’s trial counsel engaged in willful and contumacious conduct which delayed resolution of this case, and the record supports such a finding. Defense counsel requested an amended bill of particulars in May 2019 and an amended expert disclosure in October 2019. Despite a plethora of emails and letters from defense counsel, various conferences, scheduling orders and an order compelling compliance with discovery, plaintiff’s trial counsel failed to correct the deficiencies in the discovery disclosure prior to defendant filing a motion for sanctions. Under these circumstances, we agree with Supreme Court that the conduct exhibited by plaintiff’s trial counsel was willful and contumacious and that, upon such finding, the drastic sanction of preclusion was available … . * * *

Having considered the record as a whole, including the supplemental discovery disclosures, the affidavit of merit, the lack of prejudice to defendant and the nature and root of the misconduct, we vacate the August 2022 order that precluded plaintiff from proffering certain evidence and expert witnesses. Exercising our discretion, and given the strong public policy favoring resolution of actions on the merits, we accept the late amended bill of particulars as responsive to the outstanding demand … .. However, the willful and contumacious misconduct by plaintiff’s trial counsel cannot be condoned, as disregard of court orders hinders the efficient resolution of cases … . To dissuade this conduct from repeating, we impose a monetary sanction on plaintiff’s trial counsel in the amount of $5,000 … . M.F. v Albany Med. Ctr., 2023 NY Slip Op 03896, Third Dept 7-20-23

Practice Point: Here the appellate court determined the preclusion of evidence, including expert evidence, in this medical malpractice action was too severe a sanction for disobeying discovery orders. The attorney was fined $5000 for willful and contumacious conduct.

 

, ,

​ PLAINTIFF’S FAILURE TO PROVIDE DISCOVERY AND A BILL OF PARTICULARS WARRANTED DISMISSAL OF THE COMPLAINT AS A SANCTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendant’s motion to dismiss the complaint by plaintiff Morales based upon Morales’s failure to provide discovery and a bill of particulars should have been granted:

… Morales’s willful and contumacious conduct can be inferred from her repeated failures over an extended period of time to comply with court-ordered discovery and the parties’ discovery stipulation and to respond to the defendants’ demands for a verified bill of particulars and discovery without an adequate excuse … . Contrary to the Supreme Court’s determination, the requirements of 22 NYCRR 202.7 were satisfied by the affirmations of the defendants’ attorneys, which, inter alia, adequately set forth counsels’ good faith efforts to resolve the discovery issues raised by the defendants’ motion … . Morales v Valeo, 2023 NY Slip Op 03861, Second Dept 7-19-23

Practice Point: Here plaintiff’s failure to provide discovery and a bill of particulars warranted dismissal of the complaint (by the appellate court) as an appropriate sanction.

 

, , ,

THE WRONG MAILING DATE IN AN AFFIDAVIT OF SERVICE CANNOT BE CORRECTED IN AN AMENDED AFFIDAVIT; MATTER REMITTED FOR A HEARING ON DEFENDANT’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION (SECOND DEPT).

The Second Department, reversing Supreme Court and remitting for a hearing, determined a mistake in an affidavit of service of the summons and complaint (wrong mailing date) could not be corrected by an amended affidavit. Therefore a hearing on defendant’s motion to dismiss for lack of personal jurisdiction was necessary:

… [S]imilar to an erroneous address contained in an affidavit of service … , an erroneous mailing date “affects a defendant’s substantial right to notice of the proceeding against him or her, and may not be corrected by an amendment” … . Here, the second amended affidavit of service attempted to correct the admitted erroneous mailing date contained in the original affidavit of service and the first amended affidavit of service, and therefore should not have been considered … . HSBC Bank USA, N.A. v Rini, 2023 NY Slip Op 03856, Second Dept 7-19-23

Practice Point: A wrong address or a wrong mailing date in an affidavit of service cannot be corrected by an amended affidavit.

 

, , ,

A JUDICIAL FORECLOSURE SALE SHOULD BE SET ASIDE IF THERE IS DOUBT ABOUT THE TITLE (HERE SUSPICION A DEED WAS FORGED); CAVEAT EMPTOR (BUYER BEWARE) IS NOT STRICTLY APPLIED TO A JUDICIAL SALE AT AUCTION (SECOND DEPT). ​

The Second Department, reversing Supreme Court and setting aside the judicial foreclosure sale, determined the possibility a deed was forged cast suspicion on the fairness of the sale. The court noted that caveat emptor (buyer beware) is not strictly applied to a judicial sale:

“‘[A] purchaser at a judicial sale should not be compelled by the courts to accept a doubtful title,’ and, ‘if it was bad or doubtful, he [or she] should, on his [or her] application, be relieved from completing the purchase'” … .

Moreover, “[t]he rule that a buyer must protect himself [or herself] against undisclosed defects does not apply in all strictness to a purchaser at a judicial sale” … . “[A] sale of land in the haste and confusion of an auction room is not governed by the strict rules applicable to formal contracts made with deliberation after ample opportunity to investigate and inquire” … .Golden Bridge, LLC v Rutland Dev. Group, Inc., 2023 NY Slip Op 03854, Second Dept 7-19-23

Practice Point: Here the purchase of property at a foreclosure judicial sale was set aside because of suspicion a deed was forged. The doctrine of caveat emptor (buyer beware) is not strictly applied to a judicial sale.

 

, ,

AFTER DECLARING A MISTRIAL, THE JUDGE DID NOT DISMISS THE INDICTMENT OR AUTHORIZE A NEW INDICTMENT; THE SUPERSEDING INDICTMENT WAS THEREFORE A NULLITY; BECAUSE THE DEFENDANT WAS CONVICTED OF TWO COUNTS IN THE SUPERSEDING INDICTMENT WHICH WERE IN THE ORIGINAL INDICTMENT (WHICH WAS STILL VALID) THOSE CONVICTIONS WERE ALLOWED TO STAND; THE CONVICTION ON THE COUNT WHICH WAS NOT IN THE ORIGINAL INDICTMENT WAS REVERSED; DOUBLE JEOPARDY DOES NOT ATTACH AFTER A MISTRIAL (THIRD DEPT).

​The Third Department, reversing defendant’s conviction on one of three counts, determined the superseding indictment which came down after a mistrial on the original indictment was a nullity because the trial judge did not dismiss the original indictment or authorize the People to re-present a new indictment. The issue was not preserved and the Third Department considered it in the interest of justice. Because defendant had been convicted of two counts which were in the original indictment, those convictions were allowed to stand because the original indictment was never dismissed. The Third Department noted that double jeopardy principles do not attach to a mistrial. The conviction on the third count, which was not in the original indictment, was reversed:

… [B]ecause the court did not, upon declaring the mistrial on the original indictment, “dismiss the indictment or authorize the People to re-present a new indictment to the [g]rand [j]ury[,] . . . the People were limited to retrying defendant upon the same accusatory instrument” … ; thus, the superseding indictment is a nullity … . However, reversal of the judgment of conviction is not required given that both indictments contained two identical counts … . * * * This conclusion, however, does not extend to count 1 of the superseding indictment, charging defendant with criminal possession of a controlled substance in the third degree … , which was not charged in the original indictment; therefore, we reverse that conviction. To the extent that defendant raises double jeopardy concerns, as the first trial ended in a mistrial, double jeopardy principles do not attach … . People v Gentry, 2023 NY Slip Op 03818, Third Dept 7-13-23

Practice Point: If, after a mistrial, the judge does not dismiss the indictment or authorize a new indictment, the original indictment remains. Double jeopardy does not attach.

Practice Point: If, after a mistrial, a superseding indictment is brought without the trial court’s authorization, the superseding indictment is a nullity and the original indictment remains in effect.

 

,

HERE IT WAS NOT DEMONSTRATED THAT THE JUDGE LAID OUT THE SPECIFIC CONDUCT DEMONSTRATING A NEGLECT TO PROSECUTE AND IT WAS NOT DEMONSTRATED THE PLAINTIFF WAS AFFORDED NOTICE AND AN OPPORTUNITY TO BE HEARD IN OPPOSITION TO DISMISSAL FOR NEGLECT TO PROSECUTE (SECOND DEPT).

​The Second Department, reversing Supreme Court, determined compliance with the “specific conduct” and “notice” requirements of CPLR 3216 had not been demonstrated. Therefore, he motion to dismiss for neglect to prosecute should not have been granted:

Effective January 1, 2015, the legislature amended, in several significant respects, the statutory preconditions to dismissal under CPLR 3216″ … . One such precondition is that where a written demand to resume prosecution of the action is made by the court, as here, “the demand shall set forth the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation” (CPLR 3216[b][3] …). Here, the certification order is not included in the record, and, accordingly, this Court cannot make a determination as to whether that order set forth the information required by the statute.

… [A]nother precondition to dismissal is that where the court, on its own initiative, seeks to dismiss a complaint pursuant to CPLR 3216, it must first give the parties notice of its intention to do so (see id. § 3216[a] …). Such notice is meant to provide the parties with an opportunity to be heard prior to the issuance of an order directing dismissal of the complaint … . Designer Limousine, Inc. v Authority Transp., Inc., 2023 NY Slip Op 03767, Second Dept 7-12-23

Practice Point: In order for a dismissal for neglect to prosecute to hold up on appeal, the judge’s strict compliance with CPLR 3216 must be demonstrated. Here it was not demonstrated that the judge laid out the specific conduct justifying dismissal and it was not demonstrate plaintiff was afforded notice and an opportunity to respond.

 

,

IF THE JUDGE DOES NOT LAY OUT IN DETAIL THE SPECIFIC CONDUCT JUSTIFYING A DISMISSAL OF AN ACTION FOR NEGLECT TO PROSECUTE, THE REQUIREMENTS FOR DISMISSAL PURSUANT TO CPLR 3216 ARE NOT MET AND THE SIX-MONTH PERIOD FOR THE FILING OF ANOTHER COMPLAINT (CPLR 205(A)) IS AVAILABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the requirements for dismissing the first complaint for neglect to prosecute were not met. Therefore the six-month extension of the statute of limitations applied and the second complaint was not time-barred:

… [T]he complaint in the prior action was not dismissed for “neglect to prosecute” within the meaning of CPLR 205(a). “Where a dismissal is one for neglect to prosecute the action made pursuant to [CPLR 3216] or otherwise, the judge shall set forth on the record the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation” … . Although the court set forth on the record that the plaintiff failed to appear for a single conference and failed to supply an effective authorization for certain relevant medical records, such conduct did not demonstrate a general pattern of delay in proceeding with the litigation … . The court’s conclusory statements, to the effect that the plaintiff had engaged in a general pattern of delay, do not satisfy the statutory requirements that a court set forth on the record the “specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation”… .

Thus, contrary to the Supreme Court’s determination, the six-month extension afforded by CPLR 205(a) was applicable, and the instant action was timely commenced within six months of the termination of the prior action. Crudele v Price, 2023 NY Slip Op 03765, Second Dept 7-12-23

Practice Pont: The statutory requirements in CPLR 3216 for dismissal for neglect to prosecute are strictly enforced by appellate courts. Here the motion court did not lay out the “specific conduct” justifying dismissal for failure to prosecute. Therefore the six-month extension for filing a second complaint pursuant to CPLR 205 (a) was available to the plaintiff.

 

, , ,

THE JUDGE SHOULD HAVE ALLOWED TIME FOR OBJECTIONS TO PETITIONER’S APPLICATION TO WITHDRAW THE NEGLECT PETITION AND CANCEL THE FACT-FINDING HEARING (THIRD DEPT).

The Third Department, reversing Family Court, determined Family Court should not have granted petitioner’s request to withdraw the neglect petition and cancel the fact-finding hearing without allowing time for objections to be raised:

We agree with the AFC that Family Court erred in granting petitioner’s application to dismiss the neglect petition without allowing any time for objections to be raised. We are cognizant that, “ordinarily[,] a party cannot be compelled to litigate and, absent special circumstances, discontinuance should be granted” … . However, one should be given an opportunity to present any such special circumstances or any other arguments concerning the application, such as the effect upon a subject child’s welfare … , whether prejudice should attach to the discontinuance … or whether another party should be permitted, in the court’s discretion, to commence a neglect proceeding (see Family Ct Act § 1032 [b] …). Because Family Court dismissed the petition without allowing the parties — including the father as a nonrespondent parent — to present any arguments regarding petitioner’s application for a discontinuance, we remit this matter to allow them the opportunity to do so. Matter of Lauren X. (Daughn X.), 2023 NY Slip Op 03732, Third Dept 7-6-23

Practice Point: Although a party’s application to discontinue an action, here a neglect petition, should ordinarily be granted, here the judge should have allowed time for objections before granting the application.

 

, ,

AT THE TIME OF THE JUVENILE’S ADMISSION TO POSSESSION OF STOLEN PROPERTY THE JUDGE DID NOT INFORM HIM OR HIS MOTHER OF THE EXACT NATURE OF HIS “PLACEMENT OUTSIDE THE HOME OR ITS POSSIBLE DURATION” AS REQUIRED BY FAMILY COURT ACT SECTION 3213(1); ORDER REVERSED (THIRD DEPT).

The Third Department, reversing the juvenile’s admission in this juvenile delinquency proceeding, determined the juvenile and his mother were not adequately informed of the consequences of the admission to possession of stolen property:

… [T]he allocution in which respondent admitted to [possession of stolen property] was fatally defective because Family Court … failed to comply with the requirements of Family Ct Act § 321.3 (1). At the time of his admission, Family Court commented on some possible dispositions including being “placed outside of [his] home . . . for a period of time.” Neither respondent nor his mother were informed of “the exact nature of his placement outside of the home or its possible duration” … . “Inasmuch as the provisions of Family Ct Act § 321.3 (1) are mandatory and cannot be waived, the order must be reversed” … . Matter of Tashawn MM., 2023 NY Slip Op 03745, Third Dept 7-6-23

Practice Point: At the time of a juvenile’s admission in a juvenile delinquency proceeding, the juvenile must be informed of the exact nature of any “placement outside of the home and its possible duration.” The failure to so inform the juvenile requires reversal of the placement order.

 

,

THE FOR CAUSE CHALLENGES TO TWO JURORS WHO SAID THEY WOULD TEND TO BELIEVE THE TESTIMONY OF POLICE OFFICERS SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and ordering a new trial, determined that two jurors who stated they would tend to believe the testimony of police officers should have been excused for cause:

The first prospective juror stated in response to a question concerning police officers that she “was raised to respect them” and that, because “they’re the people that are protecting you, you should trust them.” When further probed about weighing the credibility of a police officer’s testimony against a defendant’s testimony, she stated that she would “most likely [believe] the police officer.” The second prospective juror stated that, because of his work as an emergency medical technician, he saw police “in a very positive light.” When asked the same question about whose version of events he would believe, the prospective juror stated “[t]o be completely honest, probably the first responder police officer.”

Further, both prospective jurors repeated that they would likely believe a police officer’s account of an event over a defendant’s version after the court attempted to rehabilitate them … . Thus, their respective affirmative answers when the court asked them if they could be fair and impartial were “insufficient to constitute . . . unequivocal declaration[s]” that they could set aside their stated bias in favor of police officers … . After the court denied his challenges for cause, defendant used peremptory challenges to remove the two prospective jurors from the venire and, therefore, “[b]ecause defendant exhausted all of his peremptory challenges before the completion of jury selection, reversal is required” … . People v Smith, 2023 NY Slip Op 03647, Fourth Dept 6-30-23

Practice Point: Here the for cause challenges to two jurors who said they would tend to believe the testimony of police officers should have been granted. Because defendant exhausted all peremptory challenges, reversal was required. The fact that the jurors said they could be fair and impartial was not enough to warrant denial of the challenges.

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy